David J P Hay

The Faculty of Advocates Employment Law Group Conference – Monday 26 June 2017

The Faculty of Advocates is hosting an Employment Law Conference on Monday 26 June 2017 at the Lighthouse in Glasgow from 9am until 3.30pm.

Calum MacNeill QC, Alice Stobart and David Hay from Westwater Advocates are all speaking at Monday’s conference alongside the Hon Lady Wise and Aidan O’Neill QC.

Places are still available and can be booked by registering on the this link.

The programme details are as follows:

Registration, Tea and Coffee will be available from 9:00am for 9:30am start. Lunch will be provided.

9.15 am Maurice O’Carroll, Chairman: Introductory remarks

9.30am The Honourable Lady Wise, Judge of the Employment Appeal Tribunal: “A view from the EAT”

10.00am David Hay, Advocate: “Time after Time: case law developments in issues of working time, time work and holiday pay

10.45am Coffee

11.15am Alice Stobart, Advocate: “The Gig Economy and workers’ rights

12.00pm Calum MacNeill QC: “Case Law update including recent cases ‘McBride’ and ‘Essop’

12.45pm General Discussion and Questions

1.00pm Lunch

2.00pm Aidan O’Neill QC: “EU law and Brexit – what about the workers?”

The cost will be £50 plus VAT to include lunch and coffee.

Westwater Advocates’ Calum MacNeill QC In Inner House Equal Pay Victory

Westwater Advocates’ Calum MacNeill QC represented the multiple claimants backed by the GMB Union in the Inner House challenge to the “pay protection” arrangements introduced by Glasgow City Council on the introduction of its Workplace Pay and Benefits Review (WPBR) in 2006. On the introduction of the new pay arrangements following the implementation of a job evaluation scheme, those employees who would otherwise have suffered an immediate drop in pay had their pay protected for three years.  The result was that predominantly female employees whose work had been rated by the JES as equivalent to that of their predominantly-male comparators were paid less than them for that period.  The claimants, some backed by Unison and some formerly by equal pay campaigners Fox Cross and now by HBJ Solicitors, maintained that to comply with the Equal Pay Act 1970, the claimants should have had their pay matched with those who were on pay protection, even though they had not been on the higher pay rates prior to the introduction of the WPBR.

The council argued that the pay protection arrangements were a proportionate means to a legitimate end, namely the implementation of the single status agreement.

The Employment Tribunal held that the pay protection arrangement was proportionate but the claimants succeeded on appeal to the Employment Appeal Tribunal. Glasgow Council appealed to the Inner House.

In a 26–page judgment issued today, the Inner House (the Lord Justice-Clerk (Lady Dorrian), Lady Paton and Lord Menzies) refused the Council’s appeal, holding that the ET had not applied its mind to the correct question when considering proportionality.   The measure in question was not the payment of pay protection but the exclusion of the claimants from the scheme.  While it might have been possible for the council to mount a defence on the basis of the cost of making transitional payments to the claimants for the pay protection period (which had been described by the Council in the ET as “enormous” and “absurdly expensive”), no such defence had been established before the ET.

MacNeill’s junior was David Parratt (Terra Firma). The HBJ claimants were represented by Jonathan Mitchell QC (Arnot Manderson), the Unison claimants by Graeme Dalgleish (Hastie Stable) and Glasgow Council by Brian Napier QC (Hastie Stable).

Sheriff Appeal Court Success for David Anderson

Westwater Advocates’ David Anderson successfully represented the respondents in an appeal against a sheriff’s decision as to the proper interpretation of a servitude. The appellants contended that the servitude permitted them to take access to their property to build a second house. They sought a declarator in this regard. The respondents argued that the appellants could not take access across their land for this purpose. David represented the respondents before the sheriff, who dismissed the action. The appellants appealed to the sheriff appeal court. The appeal sheriffs refused the appeal, holding that the title deeds did not entitle the appellants to the declarator they sought. Click here to read the judgement.

Adrian Stalker successful in mortgage repossession case involving invalid assignation of standard security

Adrian Stalker acted for the defenders in OneSavings Bank v Burns [2017] SC BAN 20, a decision of Sheriff Mann, at Banff. This was a mortgage repossession action under section 24 of the Conveyancing and Feudal Reform (Scotland) Act 1970. The pursuers averred that they were assignees of a security granted by the defenders, and in respect of which the defenders were in default. The case involved two assignations of multiple securities, in so-called “mortgage portfolio” sales between lenders.

The defenders successfully argued that the assignations were invalid, because they did not conform with the statutory form under the 1970 Act, and therefore the pursuers did not have title to sue. The assignations purported to have the effect of making the security for all sums due to the assignee, going forward. By contrast, the effect of compliance with the statutory form is that the security is only for the amount due at the date of assignation.

It is understood that the style of the assignation in this case is one which is invariably used by lenders’ agents. Therefore, the decision may have signficant implications for any case in which the assignee of a security seeks to enforce it, under the 1970 Act.

The decision can be found on the ScotCourts website: click here.

Westwater Advocates Sponsor…

We are delighted to announce that from 1 April 2017 we will be supporting Dean and Cauvin Trust.

The Trust, one of Edinburgh’s oldest charities, was established in 1733 by Edinburgh merchants, led by Andrew Gairdner, in response to the plight of the city’s orphaned and destitute children who were forced into begging and prostitution in order to survive. An Orphan Institution providing residential accommodation was created to support these children, bringing them safety and new opportunities, which was ground-breaking in the early eighteenth century.

Since 1733 the Dean and Cauvin Trust has provided a continuing service to Edinburgh’s children, supporting young people regardless of their life experiences to fulfil their potential.

Today the Trust’s staff team offers a range of interconnected support services to young people and young parents based on early intervention and relationship building, the aim of which is to help young people realise their individual strengths, recognise their self-worth and transition into adulthood with confidence, living independently in the community and achieving their potential.

Westwater Advocates Stable Director Calum MacNeill QC said, “Everyone has a stake in the well-being of our young people, and those from difficult and challenging backgrounds can benefit hugely from the extra support that Dean & Cauvin Trust work hard to provide. I am delighted that Westwater Advocates will be supporting them in their fantastic work in the coming year.”

Further information on the important work of the Dean and Cauvin Trust can be found by visiting their website.

Dean and Cauvin Trust is a registered charity, No. SC013890.